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Legal 500, 2022

Yvonne Gallagher’s comments on Supreme Court’s decision on Deliveroo riders receives widespread coverage

Following the news today that the Supreme Court has upheld the earlier decision of the High Court and Court of Appeal in dismissing the appeal by the Independent Workers of Great Britain (IWGB) in its legal battle against Deliveroo, partner Yvonne Gallagher’s comments on the case and its wider implications have received widespread coverage in a number of publications.

Yvonne said: “The decision would seem to bring to an end any argument that Deliveroo riders are “workers” for the purposes of any UK employment protection legislation, since the term is defined in a broadly consistent way across a number of statutory provisions.

The Supreme Court took into account the fact that the substitution clause was in fact used by riders and this meant that they could not be regarded as workers. It’s important to note that simply including such a clause will not always preclude worker status. The courts can ignore terms which they consider to be shams which do not reflect the reality of the working relationship. It won’t always be possible to provide for an unfettered right to substitute another person to do the work – for example where DBS or other regulatory checks are needed by riders.

IWGB’s aim had been to compel Deliveroo to negotiate collectively on its basic terms such as pay, hours and holiday entitlement and this right would have undoubtedly given riders far greater negotiating power.

It would have also considerably enhanced IWGB’s power and reach within the so called “gig economy” where individuals are treated as self-employed and will typically work independently, many for relatively short periods of time, and so in practice lack negotiating strength and organisation against a big company. Deliveroo will doubtless be pleased with this outcome.  

More broadly, the case upholds the fact that national governments have considerable flexibility in defining the groups of employees and workers to whom statutory protections apply, and in many cases, the use of substitution clauses means that gig workers will not attract such rights.

This is a fundamentally important ruling for the gig economy, not just for Deliveroo. In establishing that the substitution clause works as a proof that riders cannot be considered workers, the Supreme Court ruling may give rise to other gig economy companies following the Deliveroo employment approach – where it fits their commercial model.”

Yvonne’s commentary has been quoted in numerous publications including the Evening Standard, the FT, Bloomberg, Personnel Today, The Guardian, Business Matters, Yahoo Finance, MSN and The Irish Times.

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